Last
month (April, 2017) I wrote to some Board and some staff members of Common
Cause as well as some organizations which support Common Cause’s crusade against
any calls for an Article V convention (which they derisively call a
“con-con”.)I received many interesting
responses and had several discussions.The heart of our controversy is the concept of the “Runaway
Convention.”Article V of the Constitution
gives the states the opportunity to bypass Congress and call for a convention
to propose an amendment. If two-thirds of the states or 34 states submit such a
call then Congress MUST call a convention. But in fact in our 228 year history,
that has never happened. In spite of the fact that it has never happened, both
Common Cause and the John Birch Society and their allies, have developed an
elaborate theory of the dire consequences that would follow if such a thing
were to happen.

To
summarize the theory of the Runaway Convention: if 34 states call for an
Article V amendment convention and if Congress does not itself propose the
amendment and instead calls for a convention, then it is inevitable that the
convention will become a Runaway Convention and be taken over by evil elements
who will propose evil Constitutional amendments and maybe change the very
Constitutional rules by which the amendments are ratified. While the John Birch
Society and Common Cause agree on this chain of events and its inevitability,
they disagree on their choice of villains and their villainy.Indeed, one side’s villains and villainy are
the other side’s heroes and wish list. The interesting thing, I found, was that
while there is a great deal of emotion surrounding this issue, and while it is
frequently promoted, no one seems to have thought very deeply about it.And that is what I propose to do.

I
mention that both Common Cause and the John Birch Society because they have the
same view about the Runaway Convention even though they differ about what they
are running away from. Here’s a simplified chart which illustrates the
symmetry. The Left, led by Wolf-PAC and its allies such as Get Money
Out-Maryland (GMOM) who want an amendment to overthrow the Citizens United v FEC Supreme Court decisions, among other things.
The right, led by the Balanced Budget Amendment Task Force, wants a balanced
budget amendment. Both are pursuing their amendments via the Article V
route.The Balanced Budget Amendment
Task Force is being frustrated by the
John Birch Society while Wolf-PAC and ally GMOM are frustrated by Common Cause.
Both Common Cause and the John Birch Society have created arch villains who
will take possession of an Article V convention and turn it into a Runaway
Convention which will do the evil deeds listed and many others. I call these
villains and their villainy “money makers” because they always seem to come
attached to requests for donations.

I have
looked at many appeals on the Web for money which say that either the Koch
brothers or George
Soros (depending on what side you’re on) want a Runaway Convention to steal
the Constitution. Yet I’ve never seen a shred of proof of these accusations and
later I will go into why I think this is so.

That’s
the framework. Now to the issues. This is my paraphrase of what I was told by a
Common Cause spokesperson to justify Common Cause’s opposition to a call for an
Article V amendment convention.

“In
this political climate, as charged with big money as it is as lopsided as the
current gerrymandering congress allows and a minority president who is under
suspicion that he won the race because of hacking this to me is a climate that
is not going to be conducive to high minded Jeffersonian debates. This is going
to be a situation where the Kochs and the Mercers spend whatever it takes to
pack the room with the people they want and do what they want. That’s just not
a risk we can take. We do not believe that this is a political climate that
will get us the same product as in 1787. We are not saying that the article V
convention should come out of the Constitution, we’re saying in this political
climate, the facts that we have to deal with right now don’t lend itself to
high minded conversation. We don’t believe the founders anticipated the climate
that exists today.”

So this
is the heart of Common Cause’s opposition. (I have read similar sentiments from
the John Birch Society although their villain is George Soros rather than the
Koch brothers.) Here is a prime example of the lack of deep thinking. Common
Cause and the John Birch Society believe this is the worst of times and todays
villains are the worst of villains. They have apparently never heard of the
“Robber Barons” of the “Gilded Age” of the late Nineteenth Century. Here’s an
introduction to them.

“Sophisticated
in their political ideas, the great capitalists like the Rockefellers,
Havemeyer, Gould, James Hill, and others who ‘moved obscurely in the
background’ of party action nowadays admittedly paid their money to both
parties. In all regions and all elections they worked by using the tactics of
alternation as one of them said, for ‘the party of business,’ and operated as a
kind of interior cabal, untouched by the theatrical triumphs or defeats which
the professional political adversaries administered to each other. Ostensibly
Republican in their sympathies in 1888, the men of the Standard Oil clan, for
instance, were believed to own also a large share of stock in the Democratic
Party, through Senator Henry B. Payne and the former Secretary of the Navy, W.
C. Whitney. The Sugar Trust had its Republican champion in Senator Aldrich, but
a Democratic agent as well, it was understood, in Senator Gorman. A great
railroad magnate might shift his affections like some heartless cocotte, who
would sleep for a night with anyone who rewarded her. Jim Hill, master of the
Great Northern Railroad, had paid heavily for Cleveland's election in 1884; but
in 1888 reports of his fabulous offers of money to the Harrison campaign chest
in return for the privilege of controlling one of the cabinet posts had been
repeatedly heard. Henry Villard, another great Railroad Baron of the time, had
been in other years a passionate Abolitionist Republican, the pupil of Horace
Greeley, but in 1892 he, like many others of his class, ‘switched’ to the
support of the Democratic Party and Grover Cleveland. Four years later, in
1896, it was another story.”[1]

These guys
could eat the Koch brothers and George Soros for lunch and still have room left
for desert.

Another
reason given by The Common Cause spokesperson for the need for extraordinary
measures is “the
current gerrymandering Congress allows.” Perhaps the spokesperson doesn’t
realize that gerrymandering is named after Elbridge Gerry, a signer of the
Declaration of Independence in 1776. So gerrymandering wasn’t exactly invented
last year, it’s been around a long time.In 1790 Founding Fathers Patrick Henry and James Madison were bitter
enemies. Henry was governor of Virginia and “By artfully drawing the boundaries
of the state's congressional districts, he and his allies hoped to prevent
Madison's election to the House of Representatives.”[2] And “Throughout the 19th
century, gerrymandering biased partisan seat distributions, and, on occasion,
even decided majority control of the chamber.”[3]

This
brings to mind another lack of serious thought on the part of Common Cause.
References to “high minded Jeffersonian debates” and “the facts that we have to
deal with right now don’t lend itself to high minded conversation” shows a
great ignorance of what the Founding Fathers were all about.Washington, Madison, Hamilton, Jefferson,
Adams, Franklyn; these were not naive academic philosophers in ivory towers as
Common Cause paints them. They were savvy politicians, polemicists, and a
general, all capable of lofty rhetoric as well as not so lofty trickery. They
were willing to do whatever was necessary to create a nation and to write a
Constitution to prevent the profound corruption and abuses of power which they
lived through and witnessed under the British Crown. There is no corruption you
see today that they hadn’t seen and they saw a lot more abuses and corruption
than we will ever see, thanks to them.

Faced
with the lack of any real examples of a Runaway Convention, both the John Birch
Society and Common Cause have made use of an invented one. As one commenter
said: “The Constitutional Convention of 1787 was convened to ‘amend’ the
Articles of Confederation, The delegates, instead, rejected the Article of
Confederation in its entirety and proposed the adoption of an entirely new
Constitution.”

Remember
that in 1787 there was not one but thirteen independent nations that were
invited to meet in Philadelphia. They had formed a loose confederation under
the Articles of Confederation, not unlike the today’s European Union, and it
had a Congress called the Confederation Congress. Here is the chronology of the
1787 convention[4].

21 February 1787. At the suggestion of Alexander
Hamilton and others, the Confederation Congress calls for the convention to
amend the Articles of Confederation which later came to be called The
Constitutional Convention.

17 September.
The proposed Constitution, which replaced rather than amended the Articles of
Confederation, was signed and delivered to the Confederation Congress and the
Convention adjourned.

20 September. Congress
read the proposed Constitution.

“On 26 and 27
September Congress debated the manner in which it would send the Constitution
to the states. Critics of the Constitution wanted it transmitted to the state
legislatures with an indication that the Convention had violated Article XIII
of the Articles of Confederation and the congressional resolution of 21
February 1787.Supporters of the
Constitution advocated that Congress should approve the Constitution before submitting
it to the state legislatures. ....... On 28 September Congress reached a
compromise. It resolved “unanimously” that the Constitution and the resolutions
and the letter of the Convention be sent to the states with only a suggestion
that the states call conventions to consider the Constitution. This compromise
followed the recommendation of the Convention.”

If this was a “Runaway Convention,” what
was it running away from since it was tacitly approved by the Confederation
Congress?

Let’s
look at another Common Cause commenter. “Given the
current make-up of the Supreme Court, if advocates of overturning Citizens United succeeded in calling a
con-con, and advocates of a balanced budget amendment demanded that the con-con
also address their issues, and this went to court, it’s hard to see how the
question of whether the con-con can be limited to just addressing Citizens United would go our way.”

It
is important to follow this argument to its logical conclusion, which the
commenter doesn’t do.First we have to
back up in time to when the advocates of overturning Citizens United were within one two states short of the 34 states
necessary to require Congress to call for a convention.At this stage, when it looks like achieving
the required number of states is a foregone conclusion, one would normally
expect Congress to intervene and propose the amendment themselves rather than
deal with the uncertainty of a convention. This is what has happened several
times in the past. Without exception. How, in this scenario, can we explain this
anomaly?If, in this scenario, Congress
favored overturning Citizens United,
they would have proposed the amendment themselves. This is what Common Cause
advocates. So, under this scenario from Common Cause, Common Cause’s approach
must have failed and Congress opposes overturning Citizens United.In the
past, particularly in the case of the 17th amendment, when Congress
was faced with the unpleasant choice of proposing an amendment they hated or
letting a convention of people whom they considered “crazy radicals” do it,
they chose to do it themselves as the lesser of two evils. In neither case
would there be a convention but there would be a proposed amendment.

How,
then, can we explain this scenario? The author gives us the clue.

Either,
based on previous Supreme Court decisions or by expectation of future
decisions, Congress and the other opponents of overturning Citizens United must be confident that the Court would allow the
convention to be opened to proposing other amendments beside one to overturn Citizens United. And this, they would
have to feel, would be sufficient to be confident that there would be no
amendment overturning Citizens United
and instead there would be an amendment to their liking.No matter how farfetched, since this is the author’s
scenario, we have to go with it, so let’s see where it goes.

So now
we are faced with fifty states sending delegates to a convention to propose an
amendment overturning Citizens United
and other amendments. Thirty-four or more of those fifty had already petitioned
for an amendment overturning Citizens
United, so one would expect an overwhelming majority of the state
delegations to be of that mind. Do the delegates from the 34 or more states
that favored the amendment somehow get captured by the delegates from the 16 or
fewer states that opposed it? If so, how is that done?

At this
point the author gives us no more guidance.We are left with a farfetched scenario where
Common Cause’s efforts to overturn Citizens
United have failed and the efforts of the advocates of overturning Citizens United via the Article V
amendment convention likely to succeed, and the slim possibility of some other
amendment(s) being proposed since all of the proposed amendments would still
have to be ratified by 38 states to become law. And that is the trouble
with Common Cause’s thinking – they never follow through to completion.

Also
note that in Common Cause’s own scenario, Common Cause’s approach to
overthrowing Citizens United has
failed and Wolf-PAC’s approach has probably succeeded!

Let’s
look at what happened in the real world.

“The Bosses
of the Senate” by Joseph Keppler, PUCK, January 23,
1889

In the 19th Century, U.S.
senators were not elected to office, they were appointed by their state
legislatures. “Intimidation and bribery marked some of the states' selection of
senators. Nine bribery cases were brought before the Senate between 1866 and
1906.”[5]By the last few decades of the century,
corruption of the senate was widespread as illustrated in the cartoon, with
many senate appointments being bought by big money interests.

“During
the 1890s, the House of Representatives passed several resolutions proposing a
constitutional amendment for the direct election of senators. Each time,
however, the Senate refused to even take a vote. When it seemed unlikely that
both houses of Congress would pass legislation proposing an amendment for
direct election, many states changed strategies. Article V of the Constitution
states that Congress must call a constitutional convention for proposing
amendments when two-thirds of the state legislatures apply for one.”[6]

“In 1893 Nebraska filed the first Article V application for direct
election of senators. By 1911, 29 stateshad
Article V convention applications on file for an amendment providing for direct
election of senators, just two short of the 31-state threshold.The Senate finally conceded and passed
its version of an amendment in May 1911, which was then approved by the House
in 1912 and submitted to the states.”[7]

Now remember, this all happened during
the bad bad Gilded Age where:

“Gilded Age politics induces pertinent despair about democracy.
Representative government gave way to bought government. Politicians betrayed
the public trust. Citizens sold their votes. Dreams faded. Ideals died of their
impossibility. Cynicism poisoned hope. The United States in these years took on
the lineaments of a Latin American party-state, an oligarchy ratified in rigged
elections, girded by bayonets, and given a genial historical gloss by its
raffish casting.

“Jay
Gould was president. He never ran for office, he never lost office --- he
ruled. He wrote the laws. He interpreted the Constitution. He commanded the
army. He staffed the government. He rented politicians, fattening his purse off
their favor. He was John D. Rockefeller, James J. Hill, Andrew Carnegie, Tom
Scott, and George Pullman; and this was his time—this was his country.”[8]

Why
didn’t the likes of Gould, Rockefeller, Hill, Carnegie and the rest of the
Robber Barons do what Common Cause is predicting that the Koch brothers will do
and the John Birch Society is predicting George Soros will do, i.e. get a
Runaway Convention to kill the amendment for the popular election of the Senate
and introduce their own amendment(s)? The times were certainly more corrupt
than today and the villains had more power and villainy than today’s villains.
They had the best lawyers money could buy. They owned the best politicians
money could buy. So why? Let’s see my little scenario of what might happen if
the Robber Barons had tried to get their own Runaway Convention.

The Consortium – curtain up

Time:
1911. There are 46 states in the Union.Some of the richest and most powerful industrialists in the United
States have formed a secret organization called The Consortium, to promote
their interests. A meeting between the senior lawyer representing the Consortium
and Senator X who is the senior senator in the pocket of the Consortium.

Lawyer: Tell me Senator, how is it going with the
push from the states to force Congress to call a convention for proposing a
Constitutional amendment to elect U.S. senators by popular vote?

Senator: Well sir, it looks like they
are only two states short of the 31 states needed under Article V.At the rate they are going they should be
there in another year.But we’re not
going to let that happen.We, the
Congress that is, plan to cut them off from a constitutional convention by
writing the amendment ourselves and proposing it to the states for
ratification. That’ll make their convention moot. Anyway the handwriting is on
the wall since many states have already taken action to sidestep the
Constitution and directly elect their U.S. senators and, sadly, I’m sure many
more will follow. So we’re not really losing anything by writing the amendment
ourselves and we are preventing those crazy bastards from writing their own.

L: Do you think stopping a convention
is wise?

S: Well sir, think about this. The
Constitution is very vague about the Article V convention.If we let them go ahead with their
convention, there could be a lot of legal battles about just what this
convention might or might not do. Suppose the courts decide that that the
Constitution does not limit the convention to just the one amendment? Do you
realize what a catastrophe that would be?

L: And what would that be?

S: Well that madman Samuel Gompers
might write an amendment limiting workers to a 40 hour week and paid vacations
and give them the right to collective bargaining. That crazy biddy Susan B.
Anthony might write an amendment giving women the right to vote. That other
crazy old Biddy, Jane Addams, would take little children, earning a living for
their families, out of the coal mines and cotton mills. But worst of all, that
lunatic Carrie Nation would outlaw all our booze! That is the abomination the
Article V convention would crush us with. No sir, you’ll find no Friends in
Congress to support such a wild idea.

L: Well we have hatched a plan to take
possession of a convention and use it for our purpose.

S: What purpose is that?

L: With the passage of the Sherman Anti-Trust
Act back in 1890, they’re now looking to break up the American Tobacco Company
and the Standard Oil Company and replace them up with lots of little bitty
companies. All the other monopolies cannot be far behind.So we want a Constitutional amendment to put
monopolies above the law so they can’t be broken up. We call it the Freedom of
Commerce Amendment. So If Congress would just not propose an amendment to elect
senators but call for a convention instead, then we could take possession of
the convention to propose the Freedom of Commerce Amendment.

S: Well that’s a pretty dumb idea. If
you want a convention why not just call for your own Article V convention?

L: We would have to line up, er I mean make “Friends” with 31 state governments. That would
be difficult and time consuming. But we don’t need our own convention when we
can take over someone else’s convention, namely the convention for proposing a
Constitutional amendment to elect U.S. senators by popular vote, i.e. the 17th
Amendment convention.

S: You’re going to intentionally
create a “Runaway Convention?”

L: A catchy phrase. Maybe I’ll use it
with the boss.

S: But I already told you, Congress
doesn’t want a convention. It’s too risky. They just want to propose the 17th
Amendment themselves and avoid a convention altogether.

L: Suppose I told you and our other
Friends in Congress that we could guarantee that they wouldn’t get a bad
Runaway Convention, one run by the likes of Samuel Gompers and Susan B. Anthony
and the rest but a good Runaway Convention run by The Consortium, i.e.us?

S: And how could you do that? The
first thing you would have to do is to guarantee the Supreme Court would allow
multiple amendments to be considered. If you couldn’t do that then you wouldn’t
be allowed to propose your Freedom of Commerce Amendment at a convention called
for the passage of an amendment to elect U.S. senators by popular vote.And if you want to convince Congress to allow
a convention, which they fear, then you would have to guarantee to them in advance, that you can do that.

L: No problem. That would mean that we
would have to convince five, no six Supreme Court justices, to be on the safe
side, to be our Friends.

S: What are you going to do, bribe
them?

L: Oh that’s a crude word. There are
many ways to convince men to be our Friends besides giving them money. Our
doctors have some wonderful drugs that lift you to paradise, and after a few
trips you become dependent on our doctors to keep you lifted or to prevent you
from falling. And we have some beautiful talented young women who know how to
treat a men in ways never dreamed of by their wives and once we take a few
photographs of them enjoying themselves, they are easily convinced to be our
Friends.

S: You mean whores?

L: Such an offensive word. I prefer
courtesans.

S: OK, so you’ve lined up six, so
called, Friends in the Supreme Court, but then you have to be able to
guarantee, in advance if you want Congress’ support, that you can take control
of a convention which was called by the advocates of an amendment to elect U.S.
senators by popular vote.

L: Regardless of what they called the
convention for, all 46 states will send a delegation. There’s no law on how a
delegation may be chosen so this issue will also be thrown to the courts. Since
we will have six Friends on the Supreme Court, we will “suggest” that they
decide that each state appoint just one delegate. That way would have to
convince only 25 or 26 delegates to be our Friends. Then we could propose The
Freedom of Commerce Amendment for ratification by the states. We can do
whatever you want with the popular election of the senate amendment and we
won’t have to make any further advance guarantees to our Friends in Congress.

S: True. If you can relieve us of the
fear of a Runaway Convention, then we’re with you. But once you get your
amendment proposed, how are you going to get it ratified to become law? The
Constitution says it has to beratified by
the legislatures of three fourths of the states, or by conventions in three
fourths of the states as may be proposed by the Congress. That’s 35 states. I
don’t know what they mean by “proposed by Congress.”That may be another thing to be decided by
your six Friends in the Supreme Court. But either way getting both houses of 35
state legislatures, that’s 70 state legislatures, or 35 state conventions. That
would call for you to make one helluva lot of Friends. And the ratification process could
drag out for 5, 10, 20 or even more years.

L: Hmmm, yes … well, let us worry
about that.

S: But tell me something. Since you
need to control, er I mean, make Friends with
Congress to get your own Runaway Convention, why bother with a Runaway
Convention at all. Why not just have your Friends in Congress propose your
Freedom for Commerce Amendment for ratification themselves? That way you don’t
have to bother with no good or bad Runaway Convention and no Supreme Court.

L: Maybe we can’t get enough Friends
in Congress to do that.

S: Well if you can’t get enough
Friends to do that, how the Hell are you going to get enough Friends to allow
for your Runaway Convention?

L: Hmmm, good thinking. I’ll point
that out to the boss.

The
End-curtain down

Think!
Why would Congress, if faced with the certainty that they will soon have to
deal with the choice of 1) proposing an amendment they hate or 2) allowing a
“con-con” run by the people they hate and fear propose the amendment, choose
the later? This is not Congress’ choice between acquiescing to pressure or
calling their bluff, as one respondent has said, but a choice, between
something bad and something worse.

The
plain truth is --- nobody wants a Runaway Convention, or even any convention.
The whole idea of a Runaway Convention has no basis in fact, history, or logic.
It is a myth blown large by PR folks at the John Birch Society and Common Cause
because they saw what a great money-maker it was.

My
friends at Common Cause, I leave you with this thought: I wish you well in your
efforts to convince Congress to overthrow Citizens
United. But if you fail, what is your plan B?